Q.B.]

[Q.B.

of these hereditaments are, however, now in the occupation of the appellants, but they were provided and constructed by the appellants pursuant to obligations imposed upon them by the Liverpool Corporation Waterworks Act 1880.

The reservoir is at present large enough to deliver a daily supply of 52 million gallons, but the catchment area with which it was at present connected is only sufficient to provide a daily supply of 41 million gallons. Certain other catchment areas are, however, in the possession of the appellants, and can be connected with the reser voir, and when so connected would give an additional daily supply of 11 million gallons. Of this quantity 39 million gallons will be delivered by means of three pipes at Liverpool, and 13 million gallons will be passed away down the river Vyrnwy as compensation water, under the provisions of the Liverpool Corporation Waterworks Act 1880. At present of the three lines of pipes which were ultimately destined to form the aqueduct, only one line of pipes (capable of carrying 13 million gallons of water to Liverpool) has been laid.

The appellants were in 1895 and have since been able to borrow money for the purpose of the waterworks at from 21. 10s. 11d. to 21. 11s. 10d. per cent., but for the Vyrnwy waterworks 1,845,841l. of the capital was borrowed at 3 per cent. per annum, and 104,5287. at 23 per cent., which last-mentioned rates of interest are still paid thereon, the money having been borrowed between 1880 and 1889.

The valuation put in by the appellants prepared by Mr. A. L. Ryde was as follows:

Structural cost of the reservoir, 646,9321.; land about 1245 acres at 50l. per acre, 62,250l.; total capital cost of reservoir and site, 709,1821. But as the parish boundary only comprises 870,651 of the water area, the capital cost of the reservoir and site only equals 617,450l.

The lake is no v producing 26,506,850 gallons per day instead of the ultimate capacity of 52,506,850 gallons per day, or about a half. Therefore the effective capital value of the reservoir and site in the parish is only 308,7251.

Part of Hirnant Tunnel 1600 yards, 27,6961. Part of Hirnant Tunnel easement 1600 yards at 3s., 2401.; total, 27,9361. But the tunnel only supplies one pipe line instead of three, therefore the present effective value is 93121.

The present effective capital value of the works in the parish is therefore 318,037., and at 2 per cent. the rateable value of the works in the parish is 87461.

The valuation put in by the respondents, prepared by Mr. W. Marshall, was as follows:

Structural cost of the masonry dam, 645,4621.

Cost of straining tower and culvert in the parish of Llangynog, 38,9551.

Value of the site of the lake, with banks, &c., as improved by new roads, bridges, and fencing round same (area 1220 acres at 110l., the cost of same having only been about 62,250l exclusive of the improvement which cost 70,0911. for roads and bridges only), 134,2001.

Total capital value of the reservoir, dam, tower, and site as aforesaid, 818.6151.

27-41 of 818,6157. equals present capital value, 539,0881.

Subdivision between the two parishes.

Parish of Llanwddyn (area 1074 acres), 474,574l. Parish of Llangynog (area 146 acres), 64,514l. Parish of Llanwddyn.

Present capital value of the site as improved dam, reservoir, &c., 474,574.

Cost of Hirnant Tunnel, &c., 27,840l. at 18. 3d., 92801.

Present capital value in the parish of Llanwddyn, 483,8541.

Gross rental value, plus rates, calculated at 4 per cent. of 483,854l., which percentages equal to what the total rental value of the entire undertaking bears to the capital expended on the same, 22,9831.

Less rates at 2s. 2d. in the pound on a rateable value of 16,920., 18331.

Gross rental value of land, lake, dam, reservoir, &c., in the parish, 21,150l.

Deduct for maintenance and renewal 20 per cent., 42301.

Rateable value of land, lake, dam, reservoir, &c., in

the parish, 16,920l.

It was contended on the part of the appellants that for the purpose of ascertaining the effective capi tal value of the undertaking the amount ex pended by them on bridges and roads under the compulsory provisions contained in the Acts should not be included; that inasmuch as the reservoir itself was now complete, and was capable of dealing with a daily quantity of 52 million gallons, and that as the daily quantity which was at present required and delivered from the reservoir was only 26 million gallons, that is to say 13 million gallons for the supply of Liverpool and 134 million gallons compensation to the river Vyrnwy, the effective capital value of the reservoir and site was 261-52 of the total expenditure thereon. It was further contended on behalf of the appellants, that in the circumstances hereinbefore set out, no higher rent ought to be fixed as the basis of assessment than an amount representing 2 per cent. per annum upon the effective capital expenditure upon their undertaking.

It was contended on behalf of the respondents, that for the purpose of ascertaining the effective capital value of the undertaking in the parish of Llanwddyn, the expenditure by the appellants upon bridges and roads round the lake should be included as enhancing the value of the lake; that as in the present state of completion of the works the reservoir cannot be supplied from the various catchwater areas with more than 41 million gallons of water per day, the effective capital value of the reservoir and site was 26-41 of the total capital expenditure; that under the circumstances a higher rent ought to be fixed as the basis of assessment than an amount representing 2 per cent. per annum upon the effective capital expenditure upon the undertaking in the parish of Llanwddyn, having regard to the fact that the Corporation of Liverpool were actually paying 3 per cent. on the capital laid out on the same.

The justices were of opinion that in order to ascertain the effective capital value of the undertaking in the parish, the amounts expended by the appellants, not only upon works and bridges, but also on the church, vicarage, and schools ought to be included as being, in their opinion, a total capital cost of 787,4107; that the effective capital value of the reservoir and site ought to be taken at 26-41 of the expenditure, namely, 508,9351., and that one-third of the cost of the parts within the parish of Llanwddyn of the Hirnant Tunnel and easement as stated by the appellants, namely, 93127., was to be added to this, making a total effective capital cost of

518,2477.; that at the present time the outlay on the site and works would, in consequence of the growth of the population, and consequent greater demand for such sites as this, and of the increased cost of labour and materials for such work be greater than the actual cost of the site and works to the corporation, they held that the rateable value of the works should be taken at 3 per cent. on the outlay, rather than 2 per cent., the rate at which the appellants can at the present time borrow money.

They also held that, if in law the reservoir and dam might be rated separately, and not as integral parts of the appellants' water undertaking, their annual value, if let as a separate hereditament, should be arrived at by an estimate based upon 3 per cent. of the capital expenditure properly attributable thereto.

The questions for the opinion of the court were : (1) Whether they were, for the purpose of ascertaining the ratable value of the reservoir and works, bound to treat such reservoir and works as integral parts of the appellants' water undertaking, or whether they were entitled to treat such reservoir and works as severable from the rest of the appellants' undertaking. (2) Whether, if they were right in so holding, they were also right in taking into account the other circumstances herein before mentioned, namely, the additional outlay which would be necessary in the construction of the works at the present time, in consequence of the growth of population, the greater demand for such sites, and increased cost of material and labour, in addition to the rate of interest at which the appellants could have borrowed money at the date of the making of the rate. (3) Whether, in order to ascertain the effective capital value of the appellants' undertaking, the amounts expended by the appellants upon roads, bridges, church, vicarage, and schools, or any and which of them ought or ought not to be included. (4) Whether the effective capital value of the appellants' reservoir and site ought to be taken at 26-41 or 26-52 of the total capital expenditure thereon. (5) Whether the ratable value of the appellants' undertaking ought to be taken at 3 per cent. or 2 per cent. per annum on the effective capital value of the undertaking.

Balfour Browne, Q.C. (Honoratus Lloyd with him) for the appellants.-The question is what would the corporation be ready to give to-day as rent? They would not give more than they would pay as interest on the money borrowed for this undertaking if they were owners. The capital could now be raised by the corporation at 2 per cent., and they should not pay more now. He referred to

The London County Council v. The Erith Churchwardens, 69 L. T. Rep. 725; (1893) A. C. 562. As to the expenditure upon roads, bridges, and the church, schools, &c., that cannot be included in the capital expenditure of the undertaking for the purpose of coming to a basis upon which a rate can be assessed. Only one half of the reservoir power is being used, and therefore, although there is nothing more to be done to the reservoir itself, as it is only being half used, it should be only rated on that proportion. As to the first question for the court, the case of Reg. v. The West Middlesex Waterworks Company (32 L. T. Rep. O. S. 388) is in point.

[Q.B.

Marshall, Q.C. (E. J. Griffiths and T. A. Herbert with him) for the respondents.-No questions of law arise here, they are all questions of fact for the justices. He referred to

Lumley's Parochial Assessment Acts, p. 198;

Reg. v. The South Staffordshire Waterworks Company, 54 L. T. Rep. 782; 16 Q. B. Div. 359. The whole holding capacity of the reservoir was being utilised. With regard to the interest 3 per cent. is very reasonable considering what was actually paid, and as to the roads and bridges, church and schools, the amount they cost must be included, for without such expenditure had been incurred, they could not have had the reservoir and works.

Cur, adv. vult.

July 8.-RIDLEY, J. read the following written judgment of the court.-This was a case stated by the quarter sessions of the county of Montgomery, on an appeal by the Mayor and Corporation of the city of Liverpool, against a rate made for the relief of the poor in the parish of Llandwddyn. The subject of the rate as shown in the valuation list was "land occupied by reservoir, banks, dam, and appurtenances," and "land occupied by Hirnant Tunnel and appurte nances," and the gross rental at which these premises were assessed was 19,500l., and the rateable value 15,3221. These premises and works which were constructed by the appellants under the Liverpool Corporation Waterworks Act 1880, were part of an undertaking for the supply of Liverpool with water, and were occupied by the appellants solely for that purpose. It is not necessary to describe in general the scheme of which they formed a part; but it must be stated that certain bridges and roads had been formed by the appellants in substitution for other previously existing roads, which roads lay along or near to the reservoir, and had become under the Act public roads, and repairable accordingly. The appellants had also built a church, vicarage, and schools, for Llanwddyn parish, in substitution for those formerly existing, which were submerged by the reservoir. On the bridges and roads they thus expended 64,2761.; and on church, vicarage, and schools, 13,9521.; and all this was done under the obligations imposed upon them by the Act of 1880. That Act contained also other obligations for the protection of property of various owners, and also provided that the appellants should furnish a new burial ground for the parish, and should remove from the former one (which was submerged) the remains of persons who had been

buried in it.

The reservoir is fully completed, and is capable of delivering a supply of 52 million gallons; of these, 13 millions are passed down the river Vyrnwy as compensation water under the Act, and the rest, or 39 million gallons, are to be supplied to Liverpool and the district in three pipes passing 13 million gallons each. But at present of those three pipes only one has been constructed, and 13 millions only out of the 39 millions are supplied; and at present the catchment area connected with the reservoir is only sufficient to provide a daily supply of 41 million gallons. In 1896 and since that time the appellants have been able to borrow money for public purposes, and for those of the waterworks undertaking at from 21. 10s. 11d. to 2l. 11s. 10d. per cent., but in fact of the capital required 1,845,8411.

was borrowed at 3 per cent., and 104,5281. at 23 per cent. at an earlier period, that is between 1880 and 1889. The appellants and respondents had adopted in principle the same method of arriving at the rateable value of the premises, that is they ascertained first the structural cost of the reservoir and works, and of the land acquired within the limits of the parish, and from this they next calculated their effective capital value at the present time, and finally, by a percentage of interest on this value, arrived at the gross rental and rateable value. But it is in the carrying out of this principle that differences arose which require our decision, and the questions stated by the quarter sessions are five in number. The first is as follows: "Whether we were for the purpose of ascertaining the rateable value of the said reservoir and works, bound to treat such reservoir and works as integral parts of the appellants' water undertaking, or whether we were entitled to treat such reservoir and works as severable from the rest of the appellants' undertaking?" We think that such part of the waterworks as lies within the parish is a separate rateable hereditament in it, and should be rated accordingly upon an estimate of the rent which it would yield after making the statutory deductions: (see Reg. v. West Middlesex Waterworks Company, 32 L. T. Rep. O. S. 388). But it must be taken (as the fact is) in arriving at such rateable value that the reservoir and works within the parish are part of the whole undertaking for the purpose of distributing water as a source of profit, and though they do not directly earn anything in the parish, yet they conduce to earnings elsewhere. The whole undertaking continues in operation, and, therefore, the owner of the whole must be assumed to pay a contractor adequate remuneration for land and fixed capital vested in these parts of the undertaking, and for the labour and skill requisite for their construction and maintenance in operation. The contractor then stands in the relation of occupying tenant to the parish, and in the words of the court in the case referred to, "The part within the parish is the rateable subject, and the local rateable value is such sum as will pay the rent of the land and the profit on fixed capital therein." answer therefore is, that the reservoir and works are integral portions of the undertaking, and although rateable separately are not to be valued apart from the rest of the undertaking. The second question is, "Whether, if we were right in so holding, we were also right in taking into account the other circumstances herein before mentioned, namely, the additional outlay which would be necessary in the construction of the works at the present time in consequence of the growth of population, the greater demand for such sites, and increased cost of material and labour, in addition to the rate of interest at which the appellants could have borrowed money at the date of the making of the rate?" The appellants' valuer does not appear to have taken into account any of these circumstances in arriving at his valuation of the rateable hereditament, although the percentage on the outlay on which he calculated it amounted, as we are informed, to about 31 per cent. Nor does the case contain any mention of the evidence upon which the circumstances assumed are to be founded. In the absence of such evidence we cannot feel certain

The

[Q.B.

that the supposed greater demand for sites exists in fact. We think that in this case the capital value should be arrived at from the cost of the works as a basis. The third question is, "Whether, in order to ascertain the effective capital value of the appellants' undertaking, the amounts expended by the appellants upon roads, bridges, church, vicarage, and schools, or any, and which of them, ought or ought not to be included?" We are clearly of opinion that none of the amounts so expended ought to be included in the valuation. It was not contended, indeed, that either the roads, bridges, church, vicarage, or schools form a portion of the rateable hereditament in the occupation of the appellants, and for which they are to be rated. But it was argued that the amounts so expended are to be added to the value because they were a part of the cost of the works. It is clear, however, that they were not a part of it, but that they are to be regarded as expenses to which the appellants have been put in carrying out the obligations put upon them by Parliament as the condition upon which the powers were granted to them. If these expenses are to be called a portion of the cost of the works so must also the removal of the bodies incurred in the former burial ground, and so must also the expense of protecting various landowners and public companies which are provided for by the Act of Parliament. The contention of the respondents upon that head does not appear to us to admit of serious argument. It was, however, as to the roads and bridges, further contended that their existence enhanced the value of the reservoir which they nearly adjoin, and that, therefore, they must be taken into account. It is not at all clear that this is the fact, and if it is we have no evidence of amount, as it was not on this principle that the respondents' valuer brought them into his calculation. It might be taken that they do enhance the value of the lands through which they pass, but that is taken into account or should be, in the rateable value of those lands. The fourth question is, "Whether the effective capital value of the appellants' reservoir and site ought to be taken at 264-41 or 261-52} of the total capital expenditure thereon ?" It appears to be the fact that, when the undertaking is carried out to the full, 52 million gallons will be daily supplied by the reservoir, whereas the present daily supply is 26 million, or roughly speaking, one-half of the complete or total possible supply. Prima facie, therefore, the production being onehalf of the possible total, the effective capital value is also one-half of the total. But on behalf of the respondents it is said that the total now received into the reservoir being only 41 million gallons a day, and the total supply being 261 million a day, the proper fraction to be used in the calculation is 26-41. It was further contended that the appellants should, in order to justify their contention, add to the capital value the cost of, including the additional catchment area, which is required to bring the daily supply into the reservoir to the amount of 52 million gallons. But it is the reservoir and works which are here rated, not the works, which have not been carried out; and although it is true that the proportion between the gallons supplied out of the reservoir and those received into it is at this time 26-41, that proportion does not represent the true relation between effective capital value and total cost of construction. The reservoir is large

Q.B. Div.]

enough to receive 52 millions daily, and has been constructed and completed of those dimensions; but it only supplies one-half of that quantity. For the purposes of the rate we think that that comparison supplies the true proportion. The case of Reg. v. The South Staffordshire Waterworks Company (54 L. T. Rep. 782; 16 Q. B. Div. 359) was relied upon as showing that the cost of connecting the additional catchment areas with the reservoir ought to be added to the capital value. But in that case the works which were in excess of the actual requirements, and which were ordered to be taken into account, had actually been constructed and had become a part of the undertaking. As to the last question, namely, whether the rateable value ought to be taken at 3 per cent. or 24 per cent. on the effective value of the undertaking it seems to us that that question is largely one of fact for the decision of the quarter sessions, and therefore not to be decided by this court unless it could be shown that the quarter sessions had in arriving at their conclusion acted on a wrong basis. We have stated what, in our judgment, is the principle upon which the capital value is to be calculated. When it is arrived at the percentage upon it ought not to be higher than the necessary rate of interest at which the money could be borrowed. At the same time, when all the circumstances of the case are considered, such as the rate at which much of the money required was in fact borrowed, and the possibility that the cost of purchase and construction was less when the works were constructed than it would be now, we are not able to say that the percentage has been wrongly fixed at 3 per cent, although that rate is higher than the 27. 10s. 11d. to 27. 11s. 10d. per cent, at which the money could now be raised. Nor does it seem to conflict in any way with what has been stated in answer to the first question in this case as to the proper remuneration of the contractor for his labour, capital, and maintenance of the works. We therefore think that the order of quarter sessions ought to be quashed and the rate reduced in accordance with our opinion.

Judgment accordingly.

Solicitors for the appellants, F. Venn and Co., for H. E. Clare, Liverpool.

Solicitors for the respondents, Robbins, Billing, and Co., for Pughe and Jones, Llanfyllin.

April 1 and May 23, 1898.

(Before Lord RUSSELL, C.J. and RIDLEY, J.) RUNDLE v. HEARLE. (a) Highway-Stile and public footpath-Liability to repair-Ratione tenure-Evidence. The defendant was the yearly tenant of a farm through which there was a public pathway. At one point in its course there was a stone stile with stone steps, some of which had been worn away by time and use. In crossing this stile the plaintiff slipped on one of the steps and broke his leg.

It was proved on behalf of the plaintiff that the defendant's predecessor in possession, who was also owner, had done repairs to the path and stile, and there was also evidence that previous

(a) Reported by W. DE B HERBERT, Esq., Barrister-at-Law.

[Q.B. DIV. occupiers had done some repairs, and the defendant also had done something, but none of the repairs were considerable. There was no evidence that the parish had ever repaired or required any occupier to repair.

Held, that a few trifling repairs for his own benefit did not impose upon the defendant the duty of continuing such repair for the benefit of others, and that there was not sufficient evidence to warrant the conclusion that the defendant was liable to repair ratione tenuræ.

Quære, if an action will lie at the instance of a private person against one liable to repair ratione tenuræ in respect of non-repair.

THIS was an appeal from his Honour Judge Granger.

The action was brought by the plaintiff to recover damages from the defendant for injuries suffered through a defective stile on a public footpath crossing land in the occupation of the defendant.

The facts of the case appear from the judg

He

May 23.-Lord RUSSELL, C.J. read the following written judgment of the court:-This is an appeal by the defendant from the judgment of his Honour Judge Granger. The plaintiff sued the defendant under these circumstances. The defendant is the yearly tenant of a farm through which is a public pathway. At one point in its course is a stone stile with stone steps, some of which have been worn away by time and user. In crossing it the plaintiff slipped from one of these steps, fell, and broke his leg. He thereupon sued the defendant for damages, alleging that he was liable ratione tenure to repair the stile, and that he had suffered by its want of repair. The learned County Court judge took this view and awarded him damages. It appears that the plaintiff was aged sixty-seven years, and that as far back as 1891 he had had a "seizure." was described by his medical attendant, who was called by him, as being, when the accident happened, in a decrepit state, and as never having had the complete use of his legs since the seizure." He added he did not think it was safe for him to cross the stile in question, and that it was a difficult stile. The learned County Court judge, however, who heard the witnesses, has not thought it proper to find contributory negligence, and we do not dwell further on this point, and we proceed to consider the ground on which he did act. If it were necessary to consider and determine the point whether an action will lie at the instance of a private person against one liable ratione tenure to repair, we should desire to hear further argument upon it. There is, so far as we are aware, no record of any such case in the books, although the circumstances giving rise to such an action must have been of frequent occurrence. Martin, B. expressed considerable doubt upon the point in the case of Young v. Davis (6 L. T. Rep. 363); 7 H. & N., where he says at p. 773: "I should have been surprised if any case had been found in which it was determined that an action for non-repair was maintainable against

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a person bound to repair ratione tenure. The case in the Year-book, 11 Hen. 4, 82, 83, which was supposed to be an authority for that position, on being examined will be found not to be so." That was an action by a lord of a manor, who relied on a prescription that he and all those whose estate he had in the manor had a right to have a bridge kept in repair by the owner of a mill. That is totally different from an obligation towards all the Queen's subjects passing along a highway. We do not, however, decide this case on the view taken by this learned judge, for we are of opinion that there was in this case no sufficient evidence to warrant the learned County Court judge in coming to the conclusion that the defendant was under the obligation to repair ratione tenura. There was the usual conflict as to the past and existing state of the stile and what had been done to it in the way of repairs. One of the plaintiff's witnesses stated that the stile was at the time of the accident in the same state as it was in forty years ago, and the defendant and his witnesses denied that the defendant had, in fact or they had for him, repaired the stile. We must, however, assume that the learned County Court judge gave effect to the other evidence on the part of the plaintiff and proceed to examine it. There was no evidence that the parish had ever repaired or had ever required the defendant or any prior occupier to repair, but there was evidence that the defendant's predecessor in possession, who was, however, proved also to be the owner, had done repairs to the path and stile. Another witness stated that previous occupiers had repaired, and finally a man formerly in the defendant's employment stated that he had done some repairs at the defendant's instance. In no case do the repairs seem to have been considerable. The fact that a person has done repairs to a way may certainly be some evidence of such liability. For instance, in Reg v. Blakemore (2 Den. 410, 16 Jur. 154), where the defendant was so held liable, the evidence was that his predecessor had been convicted of not repairing the high road in question in the year 1801, and had subsequently done repairs to it; and in Reg. v. Barker (62 L. T. Rep. 578; 25 Q. B. Div. 213) the defendant and his predecessors had repaired the high road, for the non-repair of which he was indicted from time immemorial, and on that evidence was found liable. But in each of those cases the road was a road for carriages and horses, which is a widely different thing from a foot path through fields and over stiles. The one requires repairs on a system and at certain intervals, from the nature of the user, while the other does not; and on the contrary may never, except on isolated occasions, receive any repairs at all. Such a path may be dedicated, subject to the right of ploughing (Mercer v. Woodgate, 21 L. T. Rep. 458; L. Rep. 5 Q. B. 26), although the plough would for the time destroy all traces of the path, and after the plough has passed, the path is in common experience trodden out afresh by passers by, not made by repair or of hard material, for that would be inconsistent with the passage of the plough at the next season. So it may be that in dedicating to the public such a pathway through his fields the farmer may do so without any obligation to repair resting on himself or, indeed, it may be, on anybody. It is a path on which people

[Q.B. DIV.

may pass if they choose to do so, but they must pass along it as they find it, and must take it (to use the words of Cockburn, C.J. in the case just quoted) subject to any condition which the owner imposes. Blackburn, J. in the same case, said, "If this right is inconsistent with a grant of way to the public, then there was no dedication at all, and the present owner has a right to stop up the pathway altogether and so prevent the parish from repairing the path in such a way as to interfere with his ploughing.” As the user for which the path is dedicated does not necessitate repairs, we see no objection in law to a dedication of the path without placing upon the dedicator or placing on any one the obligation to do them. In the present instance the evidence on which the learned County Court judge has acted is very slight, considering that the path is an immemorial one, and it is quite consistent with such small repairs as were done, that they were done by the occupier for his own benefit. They were done on his own land. It is not as if they had been done outside his own land, or as if he had done the repairs under threat of legal proceedings, or had admitted that in doing them he was discharging a legal obligation. We think that the case is like Hudson v. Tabor (34 L. T. Rep. 249; 36 L. T. Rep. 492: 1 Q. B. Div. 225; 2 Q. B. Div. 290). There an action was brought for not maintaining a sea wall on the defendant's land, where it adjoined that of the plaintiff, whereby the plaintiff's land had become flooded. And it was shown, in order to prove the liability of the defendant, that he and his predecessors had from time immemorial repaired the wall where his land fronted the sea. The jury found for the plaintiff, but the Court of Queen's Bench and the Court of Appeal held that ther was no evidence of liability, and Lord Coleridge in giving judgment, said, The mere repair of a man's own fence for his own benefit, however often done, and during however long a period of time, will not, per se, although a man's neighbour may in fact benefit by such repair, impose on a man the duty of continuing such repair for his neighbour's benefit, when he ceases to care to do so for his own." So here the acts relied on were at the least ambiguous, and we think constitute no sufficient evidence of the liability sought to be placed upon the defendant-see also per Hullock, B. in Rex v. Allanson (1 Lew. C. C. 158). In the words of the learned Baron, “An adjoining occupier occasionally doing repairs for his own convenience to go and come is no more like that sort of repair which makes a man liable ratione tenure than the repair by an individual of a road close to his door is to the repair of the road outside his gate." We, therefore think the defendant entitled to judgment.

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Appeal allowed. Solicitor for the plaintiff, W. J. Terrill, Penryn. Solicitor for the defendant, H Dobell, for Dobell,

Truro.